Bench Memos

Aggressive Decision Against Religious Liberty

Last Friday, federal district judge Carol E. Jackson of the Eastern District of Missouri ruled that a Catholic employer could not plausibly claim that the HHS mandate substantially burdened his exercise of religion within the meaning of the federal Religious Freedom Restoration Act. Judge Jackson’s decision is deeply confused.

According to Jackson (a Bush 41 appointee, for what it’s worth), the burden that the HHS mandate imposes on objecting employers “is too attenuated to state a claim for relief” (p. 9). Here (from p. 11) is the core paragraph (underlining added):

Plaintiffs allege that the preventive services coverage regulations … substantially burden their free exercise of religion “by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government.” Am. Compl. ¶ 40 [Doc. #19]. However, the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

Some observations:

1. Recognizing the breadth of RFRA’s definition of exercise of religion, Jackson purports not to dispute that an employer is engaged in an exercise of religion when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients. (See slip op. at 8.) She instead casts her ruling on the ground that the HHS mandate does not impose a substantial burden on non-complying employers. But that conclusion is absurd: As Jackson notes, a monetary fine is one means of substantially burdening the exercise of religion (p. 10), and the monetary fine for violation of the HHS mandate is substantial indeed—“a $100/per day tax for every employee” and “annual fines of $2000 for every employee” (p. 5 n. 8).

Jackson claims not to “doubt the sincerity of plaintiffs’ beliefs, nor … the centrality of plaintiffs’ condemnation of contraception to their exercise of the Catholic religion.” But the only sensible way to understand the above-quoted paragraph is as dismissing as insignificant Frank O’Brien’s pleaded belief (Amended Complaint, ¶ 26) that “he cannot pay for and provide coverage for contraceptives, sterilization, abortion, or related education and counseling without violating his religious beliefs.” In other words, Jackson is really ruling that an employer’s refusal to provide health insurance coverage for contraceptives and abortifacients cannot be an exercise of religion.

The fact that Jackson miscasts her own ruling is a clear sign of its weakness. I’ll further note (as I discussed here months ago in my series of posts on the HHS mandate and RFRA) that HHS, in explaining its decision to allow the HHS bureaucracy to establish exemptions from the mandate for an extremely narrow category of “religious employers,” stated that “it is appropriate [for the bureaucracy to take] into account the effect on the religious beliefs of certain religious employersif coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” (See page 46623 of HHS’s interim rule (emphasis added).) HHS thus implicitly conceded that employers are engaged in an “exercise of religion” within the meaning of RFRA when they refuse to provide health insurance that covers contraceptives.

2. Although this case involves a company engaged in a secular, for-profit business, the logic of Jackson’s ruling would apply equally to every employer who has religious objections to the HHS mandate. Under her reasoning, the very narrow exemption that the Obama administration is affording some employers and the “safe harbor” against enforcement that it is temporarily extending to others are entirely gratuitous.

3. The broader implications of Jackson’s ruling are even more ominous. As law professor Rob Vischer points out:

[I]f this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services. The Catholic Church could be forced to pay for its employees’ abortions without creating a substantial burden on religious exercise for purposes of RFRA, and that issue would be so straightforward that it could be handled on a 12(b)(6) motion.  


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